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Forum Home  →  Discussion  →  Covid-19 issues  →  Thread

Shielding and ns-ESA

Ianb
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Macmillan benefits team, Citizens Advice Bristol

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https://www.rightsnet.org.uk/welfare-rights/news/item/new-style-employment-and-support-allowance-can-now-be-claimed-online

” new-style ESA can now be claimed where -
..
a person has been told to stay at home for at least 12 weeks by the NHS because you’re at high risk of severe illness.”

Someone who is shielding can be furloughed (we think although there is the confusion I raised here https://www.rightsnet.org.uk/forums/viewthread/15922/).
If they are furloughed they are by definition doing no work. The position therefore seems to be similar to someone getting occupational sick pay after their SSP has run out and I infer that someone who is furloughed because they are shielding could also claim ns-ESA.

I am not clear what regulation enables people who are shielding to claim ns-ESA.

Charles
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Ianb - 20 April 2020 07:01 PM

The position therefore seems to be similar to someone getting occupational sick pay after their SSP has run out and I infer that someone who is furloughed because they are shielding could also claim ns-ESA.

I think you are right about this. It’s a really good point.

I am not clear what regulation enables people who are shielding to claim ns-ESA.

I presume the explanation is that in SI 2020/289 (regarding ESA), “isolation” is simply defined as being “the separation of that person from any other person in such a manner as to prevent infection or contamination with Coronavirus disease”. This can easily be read as including shielding.

For SSP, in the Schedule inserted by SI 2020/374, isolation is more tightly defined, and would not include shielding. This was therefore amended by SI 2020/427 to include shielding.

The above is slightly supported by the fact that after the SSP shielding amendment, shielding is now included within the term “isolation” used in Paragraph 1 of the Schedule.

[ Edited: 20 Apr 2020 at 09:34 pm by Charles ]
Ianb
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Charles - 20 April 2020 09:02 PM

I am not clear what regulation enables people who are shielding to claim ns-ESA.

I presume the explanation is that in SI 2020/289 (regarding ESA), “isolation” is simply defined as being “the separation of that person from any other person in such a manner as to prevent infection or contamination with Coronavirus disease”. This can easily be read as including shielding.

What is troubling about this is that it isn’t clear. If we use the loose definition of “isolation” there is no logical reason why everybody who is ‘social distancing’ shouldn’t be included too.

(Am now finding it very challenging to join all the bits up!)

[ Edited: 20 Apr 2020 at 09:49 pm by Ianb ]
Charles
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Yes, I get what you’re saying.
Also, how can DWP insist on it only applying where “a person has been told to stay at home”. If what I was saying is correct then even someone who shields voluntarily without being told should be entitled, as it is still a “separation to prevent infection or contamination”.

Elliot Kent
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Ianb - 20 April 2020 09:47 PM

Am now finding it very challenging to join all the bits up!

One might almost get the impression that this is all being made up on the fly and the letter of the law has become less important than how it is being applied…

VS
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I have client who has not returned to her work in retail as she is staying at home with her 17 year old daughter who has been advised to shield by NHS Wales due to lung problems. My client had pneumonia in February and is fearful of catching the virus and spreading it to her daughter. Her employer is refusing to pay her SSP and is taking steps to sack her. As the whole matter could take time to resolve and she now has a cash flow problem. Should she apply for UC and in the meantime challenge the SSP decision? Any thoughts - she at present receives CTC, WTC and HB.

Mike Hughes
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Employee needs to ask in writing for the employer to either pay SSP or issue an SSP1a.

BC Welfare Rights
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I am thoroughly confused by this. Do the various bits of guidance, etc., create a hierarchy for SSP, NS ESA and Furlough or just different alternatives?

Mike Hughes
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BC Welfare Rights - 21 April 2020 11:36 AM

I am thoroughly confused by this. Do the various bits of guidance, etc., create a hierarchy for SSP, NS ESA and Furlough or just different alternatives?

Reads to me like there may have been an intent to create a hierarchy but the reality has been that people have a mess of alternatives to consider.

Helen Rogers
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I have client who has not returned to her work in retail as she is staying at home with her 17 year old daughter who has been advised to shield by NHS Wales due to lung problems. My client had pneumonia in February and is fearful of catching the virus and spreading it to her daughter. Her employer is refusing to pay her SSP and is taking steps to sack her. As the whole matter could take time to resolve and she now has a cash flow problem. Should she apply for UC and in the meantime challenge the SSP decision? Any thoughts - she at present receives CTC, WTC and HB.

Could your client claim ESA?  She could then keep WTC for the first 28 weeks.  This might leave her better off if there are child disability premia.

Ianb
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Elliot Kent - 21 April 2020 09:07 AM
Ianb - 20 April 2020 09:47 PM

Am now finding it very challenging to join all the bits up!

One might almost get the impression that this is all being made up on the fly and the letter of the law has become less important than how it is being applied…

Indeed. I do understand the difficulty. However I think they’ve made it more difficultfo4 themselves by spreading the advice around in such a way that some inconsistencies have crept in and the broad outline statements haven’t always been supported by the details. The Treasury Direction just seems to be slightly off but that’s probably because it’s come fro the Treasury.

AlexJ
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The DWP have released some guidance on this issue (as per the original post), which doesn’t clear matters up at all to my mind. It says:

16. ESA(Cont) is payable as employment status has no relevance to entitlement. If a claimant is engaged in PWK DMs should follow the guidance in DMG Chapter 41 and include any payment of CJRS or SEISS in the calculation of earned income.

Does this mean that if a claimant is undertaking permitted work (presumably that’s what PWK means), then you take into account CJRS payments, but if they aren’t undertaking any permitted work, then you don’t take into account the CJRS payments, because they aren’t working (i.e. if they’re just furloughed, in which case they clearly aren’t working). This wouldn’t seem to make much sense but that’s how I read it. Any thoughts? I’ve looked at the ESA regs governing ‘exempt work’ here https://www.legislation.gov.uk/ukdsi/2013/9780111531877/regulation/39 and I keep reading the word ‘work’; and if you’re furloughed, you simply aren’t undertaking work.

Any thoughts would be appreciated.

WillH
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Hi Alex,

My understanding is that CJRS & SEISS payments have no effect on nsESA because there is no provision for it to be reduced by earnings.

Although if you were doing permitted work & the earnings went above the threshold, that would be an issue, here I can’t see how that could occur because the furlough wage is 80% of your normal earnings (& even if your employer makes it up to 100%, it’s still no more than you were actually earning before furlough).

To put it another way, CJRS & SEISS payments have no effect on contributory ESA because earnings have no effect on it generally unless you go above the PW threshold - when ESA stops completely.

Could you be treated as working due to getting CJRS or SEISS - I don’t think so (because as you say nothing in the regs treats you as working, & they haven’t been amended - though DWP appear to disagree on this in the guidance), but in any case, I still think that assuming you were doing permitted work before the furlough period there’s no way your furlough wages could exceed the PW threshold.

[ Edited: 24 Jun 2020 at 04:22 pm by WillH ]
AlexJ
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Thanks Will, it’s really useful to hear your thoughts on this.

Cheers

Alex